The UnConstitutionality of Citizenship by Birth to Non-Americans

We well know how the courts and laws have spoken on the subject of children born to non-citizens (illegal aliens) within the jurisdiction of the United States by declaring them to be American citizens. But what does the constitution of the United States say about the issue of giving American citizenship to anyone born within its borders? As we explore the constitutions citizenship clause, as found in the Fourteenth Amendment, we can find no constitutional authority to grant such citizenship to persons born to non-American citizens within the limits of the United States of America.

We are, or should be, familiar with the phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This can be referred to as the citizenship clause of the Fourteenth Amendment, but what does it mean? Does it mean anyone born in the United States is automatically an American citizen? Fortunately, we have the highest possible authority on record to answer this question, the author of the citizenship clause, Sen. Jacob M. Howard (MI) to tell us exactly what it means and its intended scope as he introduced it to the United States Senate in 1866:

The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.[1]

It is clear the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil, something our courts have wrongfully assumed. But what exactly did "subject to the jurisdiction thereof" mean to the framers of the Fourteenth Amendment? Again, we are fortunate to have on record the highest authority to tell us, Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:

[T]he provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.

Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.[2]

Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.[3]

In other words, only children born to American citizens can be considered citizens of the United States since only a American citizen could enjoy the "extent and quality" of jurisdiction of an American citizen now. Sen. Johnson, speaking on the Senate floor, offers his comments and understanding of the proposed new amendment to the constitution:

[Now], all this amendment [citizenship clause] provides is, that all persons born in the United States and not subject to some foreign Power--for that, no doubt, is the meaning of the committee who have brought the matter before us--shall be considered as citizens of the United States. That would seem to be not only a wise but a necessary provision. If there are to be citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[4]

No doubt in the Senate as to what the citizenship clause means as further evidenced by Sen. W. Williams:

In one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an embassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. All persons living within a judicial district may be said, in one sense, to be subject to the jurisdiction of the court in that district, but they are not in every sense subject to the jurisdiction of the court until they are brought, by proper process, within the reach of the power of the court. I understand the words here, 'subject to the jurisdiction of the United States,' to mean fully and completely subject to the jurisdiction of the United States.[5]

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:

[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen...[6]

Further convincing evidence for the demand of complete allegiance required for citizenship can be found in the "Naturalization Oath of Allegiance to the United States of America," an oath required to become an American citizen of the United States. It reads in part:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen...

Of course, this very oath leaves no room for dual-citizenship, but that is another troubling disregard for our National principles by modern government. Fewer today are willing to renounce completely their allegiance to their natural country of origin, further making a mockery of our citizenship laws. In fact, recently in Los Angeles you could find the American flag discarded for the flag of Mexico in celebration of taking the American Citizenship Oath. James Madison defined who America seeked to be citizens among us along with some words of wisdom:

When we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuse. It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours. But why is this desirable? Not merely to swell the catalogue of people. No, sir, it is to increase the wealth and strength of the community; and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.[7]

In a nutshell, it means this: The constitution of the United States does not grant citizenship at birth to just anyone who happens to be born within American jurisdiction. It is the allegiance (complete jurisdiction) of the child’s birth parents at the time of birth that determines the child’s citizenship--not geographical location. If the United States does not have complete jurisdiction, for example, to compel a child’s parents to Jury Duty–then the U.S. does not have the total, complete jurisdiction demanded by the Fourteenth Amendment to make their child a citizen of the United States by birth. How could it possibly be any other way?

The framers succeeded in their desire to remove all doubt as to what persons are or are not citizens of the United States. They also succeeded in making both their intent and construction clear for future generations of courts and government. Whether our government or courts will start to honor and uphold the supreme law of the land for which they are obligated to by oath, is another very disturbing matter.

--------------------------------------------------------------------------------

[1]. Congressional Globe, 39th Congress (1866) pg. 2890 [2]. Id. at 2893 [3]. Id. at 2895 [4]. Id. at 2893 [5]. Id. at 2897 [6]. Id. at 1291 [7]. James Madison on Rule of Naturalization, 1st Congress, Feb. 3, 1790.

Permission is granted to use, copy or republish this article in its entirely only. Last updated 2/20/05.

If a living human being is within the borders of the US, including any territory or possession, that person is subject to the jurisdiction of the American law and the judiciary for all purposes.

If that is so absolutely unerringly obviously true, then why did it take until 1924 for an act of Congress to make Native Americans citizens of the United States? As you state it, Native Americans would have been considered citizens by virtue of the fact that they were born "within the borders of the US, including any territory or possession" but they were not. If Congress can declare that Native Americans are or are not citizens, then Congress can declare illegal aliens to be citizens or not by dint of legislative fiat, just as they did for Native Americans can they not? If they cannot, what's the Constitutional difference under the 14th Amendment between a Native American non-citizen in 1918 born in Oklahoma prior to the enactment of the Indian Citizenship Act of 1924 (who would not have been considered a citizen) and an illegal Mexican alien born in also born in Oklahoma in the same time period?

Thanks. Now here's a scenario for you. Tomorrow we discover some set of writings by one or more of our founders suggesting that the 2nd Amendment was actually intended to preserve a state's right to maintain a militia, not for individuals. Would it change anything? Could gun grabbers have the day? I don't think so.

The reality is that we have over 100 years of precedent holding that people born in America are Americans. And I, for one, am fine with that.

the 2nd Amendment was actually intended to preserve a state's right to maintain a militia,...

There is no such thing as "state's rights". Look it up in the Constitution, "states rights" is never mentioned in the document or in subsequent amendments. It's an oxymoron, like collective rights. The language of the constitution is that individuals have "Right's" and government entities have "Power's" and the Founding Fathers never used the terms interchangeably. That you lack the knowledge of this fact indicates to me that you may be a constitutional moron. Furthermore, the 2nd Amendment, as it is written, gives the "power" to form and regulate militias to the states, but maintains the right of the people to be armed.

And I, for one, am fine with that.

Why didn't you just state that and live with the responses instead of giving evidence of your ignorance by trying to support your opinion with your illogical reasoning?

I for one, do not belive that the 14th. Amendment, as it is written, confers citizenship by reason of birth within the borders upon a newborn conceived by two foreign nationals. And it was never intended to do so.

Look, Bub. I try being respectful to everyone here. Don't go pushing the "ignorance" thing unless you'd really really really like to get into a pissing contest that you'll never win.

You know the point I'm trying to make regarding the 2nd Amendment and "intent." If you don't want to deal with the issue, then just let it go. As it stands, you're just blowing smoke.

Just to show you I'm not compeletely heartless, I'll give you this last opportunity to back away. To help you out, let's take a look at how you misrepresented what I said and then misrepresented the Constitution:

Me (paraphrasing): "What if we found written evidence that the 2nd Amendment was intended to preserve a state's right to maintain a militia?"

You (paraphrasing): "What?! What!? The Constitution says nothing about states' rights! Nothing, I tell you!"

Synopsys: Note how Mr. Elbucko substitutes the concept of "states' rights" for my phrase "a state's right." What a foolish thing to do! Moreover, Mr. Elbucko has apparently forgotten the 10th Amemdment, which speaks of powers delegated to the states, and implicitly supports the idea that the states do have "rights" (call them legitimate powers, if you like) under the Constitution.

See? And we haven't even gotten to the part where my analogy floats inches over your head!

There is no such thing as "state's rights". Look it up in the Constitution, "states rights" is never mentioned in the document or in subsequent amendments.

Except of course,for this one;

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

What if one of the parents is a citizen and the other is not but the child is born in the U.S., is the child then an American Citizen or not?

If one parent is a citizen, the other is not, whether the child is born in the USA or not, the child CAN be a citizen.

I speak from experience.
Both my children were born in hospitals in the Philippines. I had to submit, "Reports of Birth Abroad" to get them recognized as citizens of the USA.
Had they been born in the USA, or on US soil (The Naval base hospital would have done the paperwork) they would have automatically been US citizens.

Note how Mr. Elbucko substitutes the concept of "states' rights" for my phrase "a state's right". What a foolish thing to do!

Quite the contrary. Your reaction of disbelief to the revelation that there is no such thing as "states' rights", or "a state's right" is common among those who have not intellectually explored the Constitution and the history and philosophy that it emanated from. Rights are not zero-sum, that is my right to life does not cause another to die, my right to liberty does not cause another to become a slave, or my happiness cause anothers despair. Such is the nature of "Rights".

Powers, however, are zero-sum. The federal power of a navy proscribed the states from having navies. The federal power of the mint denies the states the power to mint money. A state may claim the "right" to print its own currency, but that would be patently unconstitutional.

Mr. Elbucko has apparently forgotten the 10th Amendment, which speaks of powers delegated to the states, and implicitly supports the idea that the states do have "rights" (call them legitimate powers, if you like) under the Constitution.

"Supports the idea"? OK, "Oh Wise One", argue the bogus concept of "supports the idea" before the Supreme Court and see how far you get. The 1st Amendment uses the term "powers" and that is what it meant. The problems we have with society now is because so many voters like you do not understand the Constitution. No matter how much you wish the concept of "states rights" or "a state's rights, it does not exist in the Constitution. Only individuals have "Rights"!

Now, Oh Wise One, where in the Constitution does it confer upon a foreign national who has conceived with another foreign national the right to give birth to a US Citizen because the birth was within the borders of the US?

Except of course,for this one;

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

I hate to disillusion you, but where in the 10th. Amendment is the word "rights" actually used? Are you one of those that claim that "rights" are implied? If so, then why are the terms "rights" and "powers" used so precisely throughout the Constitution without being used interchangeably? Because the Founding Fathers were precise and used these terms in the contexts intended. The only "rights" that reside within the 10th Amendment are contained within the phrase; "or to the people", because only people have rights, governments do not. Had the Founding Fathers wanted to grant rights to the states - and I don't know by what authority the feds could do that - the 10th Amendment would have said so.

You only need to read the first sentence of any post by Mr. Elbucko to realize how totally foolish he is. I never objected to his objection to "states' rights." I simply suggested that the 10th Amendment refers to powers of the states and that one might infer from it the concept of a state having "rights."

Mr. Elbucko, however, insists on playing semantical games because, apparently, one of his sharp former social studies teachers impressed on him the idea that only individuals have "rights." This is a great philosophical point, but one that has no relevance at all to the original discussion. And, in fact, the phrase "a state's right" is understood by most intellegent people to mean "a state's legitimate power."

Finally, we get to Dr. Elbucko's big beef--the 14th Amendment, which simple language has been properly interpreted as meaning that if you're born in the USA you have a right to US citizenship. It's an idea that most Americans believe to be just, given our nation's history and tradition as being a light of freedom for the world.

All I can say about Mr. Elproducto's complaint is that while we're all sorry about his being dumped by his Hispanic girlfriend last year, this is no reason for him to continue on this anti-"ferner" tyrade of his.

Do any legal types out there have a clue as to what court decision established that the children of the persons actually listed could claim citizenship?

In Wong Kim Ark v. United States (1898), the Supreme Court held that the 14th Amendment conferred citizenship on anyone born here, except for children of foreign diplomats (who had diplomatic immunity, and thus were not subject to the jurisdiction of the U.S.) and American Indians born in those parts of Indian country which were still sovereign and had not been subjected to U.S. law.

This, to me, seems clear enough and beyond any argument; how any court could twist the meaning to mean the direct opposite should be a fascinating story: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Not so clear. If he meant all foreigners and aliens, why did he have to add "families of ambassadors"? The Supreme Court in 1898 held that he meant "foreigners and aliens who belong to the families of ambassadors." This actually makes sense of the language of the 14th amendment-- families of diplomats have diplomatic immunity, and are thus not "subject to the jurisdiction" of U.S. law; families of illegal aliens are subject to U.S. law (which is why we can prosecute illegals for crimes they commit here, but we can't prosecute diplomats if they commit crimes).

Mr. Elbucko, however, insists on playing semantical games..

Finally, we get to Dr. Elbucko's..

Mr. Elproducto's

Why don't you grow up and use the proper tense in your replies instead of this childish gibberish.

Finally, we get to Dr. Elbucko's big beef--the 14th Amendment, which simple language has been properly interpreted [?] as meaning that if you're born in the USA you have a right [?] to US citizenship. It's an idea that most Americans believe to be just, given our nation's history and tradition as being a light of freedom for the world.

No, you're wrong, as usual. Most Americans do not belive the 14th Amendment empowers those immigrants, who are ILLEGALLY within the borders of the United States, to birth their children there and confer citizenship upon the issue.

No other country in the world allows such a situation. The child is the nationality of the parents. If the parents have immigrated legally, citizenship is not an open issue until the child is 18. Or, in other words, go drop your kids in Mexico, claim that they are Mexican citizens that empowers you, the parents, with permanent visa to remain in Mexico and see how far you get. Enjoy the Mexican jail, Gringo!

It seems to me that the Mexicain government is and has been demanding a say in any capitol case that involve one of their citizens in our courts. Is not that a claim of a jusidiction outside of our own?

The US State Department also gets involved with US citizens charged in other jurisdictions.

Mexico can causes problems (as do some others) because they don't like to release a prisoner to the US if said prisoner could get a death penalty. On the good side though, Bush and Fox have worked out a deal where Mexico returns (with judicial hearing but no trial) anyone requested by the US Marshal's office to the US and vice versa. (Clinton didn't even try to get criminals returned from Mexico.) There are (according the local Marshal's office) several hundred such in the Albuquerque jail awaiting trial in the US. The idea is not to allow criminals to treat the other country as King-X territory.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.